Dr Bob Sears license on probation for invalid vaccine exemptions – again

Dr Bob Sears

On 27 June 2018, Dr Robert (Bob) Sears, an anti-vaccine pediatrician, agreed to a stipulation with the California Medical Board that put his license to practice on probation and subjected him to a set of non-trivial conditions.

The revocation of the medical license of Dr Bob Sears was stayed by the Medical Board – it will not become operative unless he violates the conditions – but given the specific allegations in the complaint and the fact that this was his first disciplinary action, an immediate full revocation was not likely. The sanction is non-trivial, and a clear warning against future misconduct.  Continue reading “Dr Bob Sears license on probation for invalid vaccine exemptions – again”

California SB276 – legislation to reduce vaccine medical exemption abuse

sb276

On 20 June 2019, after a long day of testimony on California SB276 from both sides of the mandatory vaccine issue, the assembly health committee voted 9 in favor, 2 against, and 2 abstaining to move forward with the bill which can prevent fake medical exemptions.

This post will describe the amended bill and then shortly address today’s events. Continue reading “California SB276 – legislation to reduce vaccine medical exemption abuse”

Dorit Rubinstein Reiss – an index of her vaccine articles on this website

Dorit Rubinstein Reiss

Dorit Rubinstein Reiss – Professor of Law at the University of California Hastings College of the Law (San Francisco, CA) – is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination–she really is a well-published expert in this area of vaccine policy, and doesn’t stand on the pulpit with a veneer of Argument from Authority, but is actually an authority. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

She was also one of the many contributors to the book, “Pseudoscience – The Conspiracy Against Science.”

Many bloggers and commenters on vaccine issues will link to one or more of her articles here as a primary source to counter an anti-vaccine claim. The purpose of this post is to give you a quick reference to find the right article to answer a question you might have.

Below is a list of articles that Dorit Rubinstein Reiss has written for this blog, organized into some arbitrary and somewhat broad categories for easy reference. This article will be updated as new articles from Professor Reiss are published here. We also may update and add categories as necessary.


Continue reading “Dorit Rubinstein Reiss – an index of her vaccine articles on this website”

Yes, vaccine herd immunity works – scientific evidence supports this fact

herd immunity

This piece is a summary of Herd Immunity and Immunization Policy: The Importance of Accuracy, published in v. 94 of the Oregon Law Review.

As a bit of background, in an article that was published in the Oregon Law Review in 2014, authors Mary Holland and Chase E Zachary claimed that school immunization mandates are inappropriate because they reject the concept that herd immunity works.

This article will explain why Holland and Zachary’s analysis or immunization mandates and herd effect is simply incorrect. And let’s be clear – there is a legitimate debate about whether school immunization mandates are appropriate, policy-wise, as a response to non-vaccination.

Unlike vaccine science, the appropriate policy to handle non-immunization is not agreed upon, and the data on what is the right way to get people to vaccinate is anything but clear (though some things are clear – for example, harder to get exemptions lead to higher vaccination rates). But the debate needs to be premised on accurate facts – not on misuse of legal terms and incorrect scientific data. Holland and Zachary’s article does not provide that. Continue reading “Yes, vaccine herd immunity works – scientific evidence supports this fact”

New York vaccine mandate – judge rejects anti-vaxxer challenge

On April 18, 2019, a New York Supreme Court Judge (see Note 1) rejected a challenge to the New York vaccine mandate (pdf) brought by three lawyers (attorneys Robert Krakow, Patti Finn, and Robert F. Kennedy Jr., all of which have litigated cases on vaccines issues in the past). The litigation involved New York City’s order for an MMR vaccine mandate in certain zip codes.

The decision will likely be appealed but is well-reasoned and at this point, leaves the mandate in place. This article will take a look at the case. Continue reading “New York vaccine mandate – judge rejects anti-vaxxer challenge”

Vaccine medical exemptions – California legislature aims to curb abuse

On 25 March 2019, Dr. Richard Pan, a California Senator, amended a bill he previously submitted to tighten the process of granting vaccine medical exemptions in California. The bill is a response to an increase in medical exemptions due to the willingness of some physicians to sell unjustified vaccine medical exemptions to misguided anti-vaccine parents. If it passes, it can help curb abuses. Continue reading “Vaccine medical exemptions – California legislature aims to curb abuse”

Merck whistleblowers – mumps vaccine lawsuit motions and updates

merck whistleblowers

In August 2010 Stephen A. Krahling and Joan A. Wlochowski (“the relators”), former Merck virologists and often called “Merck whistleblowers,” filed suit in the name of the United States – a so-called qui tam action, where the prosecution shares any fines or penalties with the two virologists  – against Merck.

They claimed that by faking effectiveness testing, Merck misled the United States government as to the effectiveness of the mumps component of its  MMRII vaccine (a vaccine which protects individuals against mumps, measles, and rubella). In 2012  a clinic and two MDs filed a class action against Merck claiming a violation of the Sherman Act – monopolistic, anti-competitive behavior resulting from the fraud – and violation of various state laws. (U.S. v. Merck and Chatom v. Merck). The suits were handled together. Continue reading “Merck whistleblowers – mumps vaccine lawsuit motions and updates”

Another SB277 lawsuit rejected – anti-vaccine Voice for Choice loses

SB277 lawsuit rejected

On 20 November 2018, the California court of appeal for the third appellate district, in a strong decision, rejected a challenge by the anti-vaccine organization A Voice for Choice and three individual plaintiffs to SB277, California’s law removing the personal belief exemption to school immunization mandates. The decision included scathing criticisms of the arguments and a powerful endorsement of school vaccines mandates. This article will examine yet another SB277 lawsuit rejected by courts.

Background

The first iteration of the lawsuit in question here was first discussed in November 2016, and it was then filed with a federal district court. After the initial rejection of that lawsuit, it was refiled with a state court, and after that was rejected, the plaintiffs appealed. 

The court opened by stating that “Plaintiffs’ arguments are strong on hyperbole and scant on authority.” Its decision drew extensively on the California Court of Appeal, Second Appellate District’s decision in Brown v. Smith, and on the federal district’s court decision in Whitlow v. California (discussed here). 

The Court opened with the California Supreme Court decision in Abeel v. Clark (1890) 84 Cal. 226, in which the Court upheld a school immunization requirement, and the extensive jurisprudence, state and federal, that upheld vaccines mandates since. It reminded us that for over a century, courts upheld school mandates in the face of challenges, and cited Brown v. Smith to explain that “[t]his is another such case, with a variation on the theme but with the same result.” 

Setting the ground, it explained the act, and its purpose “to provide “[a] means for the eventual achievement of total immunization of appropriate age groups against [certain] diseases.” (§ 120325, subd. (a).)” It explained the need for the act – the measles outbreak centered on Disneyland and the warning it provided that vaccine rates are too low, and exemption rates increasing too fast, and in some areas are dangerously high.

It set out the standard of review for a demurrer. A demurrer is a claim that the complaint does not raise a cause of legal action – in some jurisdictions, it would be titled a motion to dismiss. Because sustaining – accepting – a demurrer means a case is kicked out without going through fact-finding, without plaintiffs having their full day in court, the standard is pretty high, and appellate review is aggressive: 

We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed.” (Brown v. Smith, supra, 24 Cal.App.5th at p. 1141.) We may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. 

De novo means the appellate court is not bound by the finding and conclusions of the court below but reevaluates the claims from scratch. As the court explained, it is assuming factual claims are true, though if there’s judicial notice of well known, external facts, it can reject clearly implausible claims.

Note that a demurrer is usually sustained with a “leave to amend” because the court thinks it is possible for the plaintiff to state facts sufficient to constitute a cause of action. In this case, the demurrer was sustained without leave to amend because the court believes that the plaintiffs’ claim is so weak that no amending of the complaint will solve the fundamental problems.

SB277 lawsuit rejected – substantive due process

A substantive due process claim argues that the government overstepped in interfering with individual rights, beyond a legal standard. 

Here, there are three parts to this argument, as addressed by the Court – plaintiffs claim that SB277 violates their right to bodily autonomy, conditions their right to attend school on giving up bodily autonomy, and interferes with their parental rights. The court rejected the argument both because plaintiffs did not provide any legal authority supporting it (they couldn’t – there are none) and because they did not succeed in convincing the court that the law violates either of the possible legal standards. A substantive due process claim that affects a fundamental right (like bodily autonomy) would be held to the high standard of strict scrutiny. Under it, a law is “upheld only if it is narrowly tailored to promote a compelling governmental interest.” In other claims, a much lower bar – rational-basis review – applies. The court found SB277 would meet either standard. The court said that:

“It is well established that laws mandating vaccination of school-aged children promote a compelling governmental interest of ensuring health and safety by preventing the spread of contagious diseases.”

It cited multiple cases upholding vaccine mandates and criticized the plaintiffs for not addressing them and responding to them. I’m not sure that’s completely fair – the plaintiffs did try to address at least one of the cases the court pointed to, Zucht v. King and the decision later responded to that. But the court is completely right that plaintiffs did not succeed in providing a convincing reason to reject that abundant jurisprudence. 

Addressing bodily autonomy, the court rejected plaintiffs’ effort to argue that the vaccine cases are before cases upholding bodily autonomy, and therefore invalid. The court said: “We are aware of no case holding mandatory vaccination statutes violate a person’s right to bodily autonomy.”

I agree with the court’s conclusion, but I would support it differently. First, at least one famous bodily autonomy case – Schloendorff v. Society of New York Hospital  dates to 1914, while Zucht is a 1922 case, so the timing does not fit the plaintiffs’ claim. But more importantly, while I think the bodily autonomy cases would be important if a state were to impose an adult mandate, that’s not the issue here. These are children who are required to be vaccinated – and bodily autonomy does not work quite the same way. The children are not capable of making autonomous decisions, and the issue is not their autonomous choice not to be protected from diphtheria, measles, hib, etc. – it’s their parents’ choice not to protect them.

There are other arguments against the cases, but I want to keep this short, so I will not go into detail about them. 

The more tricky prong of the strict scrutiny standard for this purpose is that a law limiting rights has to be narrowly tailored. Here, plaintiffs – as they should have – argued that there are other, less aggressive means to prevent outbreaks. And the court – correctly, in my view – rejected it, drawing on Brown v. Smith and Whitlow again. The court pointed out that the state’s objective – total immunization of the relevant age groups – is ambitious, and lesser means won’t achieve it. It then quoted language from Brown strongly endorsing mandates (pdf):

“This argument fails, of course, as compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that ‘when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,’ and community immunity wanes if large numbers of children do not receive required vaccinations.”

The court gave short shrift to the plaintiffs’ claim that SB277 violates privacy, because when dealing with health matters, the review is under rational-basis review, and the desire to prevent dangerous diseases trumps it (to those interested in a longer analysis, I engaged in one here).

Probably the strongest claim plaintiffs had is the claim that SB277 violates the right to education – though even that is not particularly convincing. But the Court rejected this claim easily, too, because the two previous decisions – Brown v. Smith and Whitlow – already dealt with the issue. The court found that the precedent enshrining the right to education – Serrano – did not apply, for two reasons.

First, it was not applicable on the facts:

[quoting Brown] “Serrano struck down a public school financing scheme as violating equal protection guaranties ‘because it discriminated against a fundamental interest — education — on the basis of a suspect classification — district wealth — and could not be justified by a compelling state interest under the strict scrutiny test thus applicable.’ ” (Brown v. Smith, supra, 24 Cal.App.5th at p. 1145.) Like the plaintiffs in Brown, the plaintiffs here “cite Serrano to support their claim that Senate Bill No. 277 . . . violates their constitutional right to attend school, but fail to explain its application here. There is no ‘suspect classification’ underlying Senate Bill No. 277.”

Second, and just as important, even assuming the statute was held to strict scrutiny because education is a fundamental right, the court already explained that it can pass strict scrutiny. 

Finally, in a very short statement, the court agreed with the Brown court that SB277 did not violate religious freedom. 

In short, this decision agreed with previous jurisprudence that school mandates are constitutional and valuable.

SB277 lawsuit rejected – what next?

A Voice for Choice has two choices. It can accept the loss and go home, or it can try and appeal to the California Supreme Court. Not appealing has advantages: this is an unpublished decision, and as such, does not serve as a precedent – it cannot be cited or relied on. It is, however, binding on the parties to the case. A Supreme Court decision, if one happens, could well echo the strong endorsement of mandates, based on strong evidence that they work and an extensive jurisprudence, and would change the legal situation for the worse – it would end the issue in terms of California law (since the claims in this lawsuit are mostly state claims, the California Supreme Court is the last word on them). On the other hand, not appealing gives up a chance to change the legal situation, leaves SB277 intact, and leaves in place the other appellate court decision – Brown v. Smith – supporting it. 

If A Voice for Choice appeals, the Supreme Court will get to decide whether to take the case. The California Supreme Court takes very few civil law cases, and this one is based on extensive jurisprudence rather than breaking new ground – so there is a strong chance it will not be taken up. On the other hand, the court may want to address the question of immunization mandates in current times. 

We will see. 

8 December 2018 Update

The state requested that the court’s decision be published. On December 6, 2018, the court granted the request, giving the decision precedential force.

14 March 2019 Update

The Love Plaintiff requested the Supreme Court of California to review the case. The California Supreme Court, like the majority of the highest courts in the states, generally has discretion on whether or not to hear cases. On 13 February 2019, the Supreme Court declined to review the case, making the court of appeals decision final.

Anti-vaccine liability – should they pay for the harm they cause?

Recently, Professor Dorit Rubinstein Reiss wrote an editorial in the San Francisco Chronicle about anti-vaccine liability – should parents who refuse to vaccinate their children be financially liable for the harm they cause to others? Professor Reiss lays out a compelling case as to why it should happen.

Professor Reiss, a frequent contributor to this website, is a Professor of Law at the University of California Hastings College of the Law (San Francisco, CA). She writes extensively in law journals about the social and legal policies of vaccination–she really is a well-published expert in this area of vaccine policy. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

She has written other articles about anti-vaccine liability – here and here. This is an issue that many of us think about when anti-vaxxers put not only their own children but also many others, at risk of dangerous diseases. 

Continue reading “Anti-vaccine liability – should they pay for the harm they cause?”

Flu vaccine lawsuit – a non-win, non-revelation regarding pregnant women

On 11 February 2019, Health Impact published an article about a flu vaccine lawsuit which an anti-vaccine group called the “Children’s Health Fund” described as a legal win and revelation. The claim was based on a response to a Freedom of Information Act (FOIA) request that did not, in fact, reveal any new information.

The flu vaccine lawsuit also did not counter the basis of expert agencies and organizations recommendations that pregnant women be vaccinated against influenza to protect themselves and their newborns. This article will review the facts of this action. Continue reading “Flu vaccine lawsuit – a non-win, non-revelation regarding pregnant women”